In Texas, a criminal conviction occurs once a jury delivers its verdict of guilty to the trial judge or a defendant elects to plead guilty, and the judge accepts the plea.


There is a significant difference between these two types of conviction. 


A guilty plea is generally a non-appealable judgment based on the legal assumption that the plea was knowingly and voluntarily entered. In certain circumstances, a judge will permit a defendant to preserve the right to appeal an adverse pretrial ruling, such as denying a motion to suppress illegally obtained evidence.


A jury trial conviction, however, carries an absolute right to appeal the judgment. To appeal, a defendant must file a written notice of appeal. The notice of appeal must be filed within 30 days from the court’s decision in open court, the date of the judgment. The appeal deadline can be extended by filing a motion for a new trial, which must also be filed within 30 days.  


Or, a defendant can, and may, elect to precede the notice of appeal with a motion for a new trial—a motion that, like the notice of appeal, must be filed within 30 days of the judgment. The filing of a new trial motion extends the time for filing a notice of appeal to 90 days.


A direct appeal is taken to one of Texas’s fourteen intermediate courts of appeal having proper jurisdiction. If a defendant cannot afford an attorney, the trial court must appoint an attorney to represent the defendant on appeal.


When a direct appeal is denied, the attorney has 15 days to file a motion to rehear the case. If the motion is denied, they have 30 days to file a petition for discretionary review with the Texas Court of Criminal Appeals (Tex. Crim. App.) seeking a review of the appeals court decision.


And this is where things often become a constitutional sticky wicket for defense attorneys. 


Some attorneys are reluctant, for any number of reasons, to file petitions for discretionary review. This reluctance can be traced to a 1982 decision by the Tex. Crim. App., which held that a defendant does not have a “constitutional right to counsel” to pursue a petition for discretionary review, but they do have a right to prepare and file such a petition on their own.


Attorneys assumed this ruling to mean that they were under no legal obligation to pursue discretionary review of a direct appeal denial. But some thirteen years later, the Tex. Crim. App. clarified its 1982 decision with these points of instruction to criminal defense attorneys:


  • An appellate attorney has a duty to explain the meaning and effect of an appeals court denial;
  • Convey to the defendant the attorney’s professional judgment about grounds for a petition for discretionary review; and
  • To discuss with the defendant the advantages and disadvantages of discretionary review.


Three years later, however, the Tex. Crim. App. muddied the constitutional waters with a decision that effectively overruled the above instruction points. The court narrowed the attorney’s “obligation” to the sole issue of informing the defendant that their direct appeal has been denied and that they can pursue discretionary review on their own. 


“Counsel has no other constitutional obligations because a defendant has no right to counsel for purposes of discretionary review,” the court reasoned.


In the wake of this 1995 decision, the issue became a singular ineffective assistance of counsel claim: did counsel properly inform the defendant of the direct appeal denial and their right to pursue discretionary review on their own?


Two decades after this series of Tex. Crim. App. decision-making, the issue lingers about the legal responsibility of criminal defense attorneys regarding denials of direct appeal. This problem is exacerbated when attorneys are appointed to represent indigent defendants because they will not be paid for work on petitions for discretionary review because they are not constitutionally mandated. Two recent decisions emanating in Harris County underscore this continuing problem.


On May 17, 2023, the Tex. Crim. App. dealt with a case, Ex parte Clone Kinsey, in which the defendant charged that he did not receive timely notice from the appellate court or defense counsel that his appeal had been denied and that he had a right to seek discretionary review.


Citing a previous 2003 decision, the Tex. Crim. App. found that there had been a “breakdown in the system, and due process requires that Applicant be permitted to exercise his statutory right to file a petition for discretionary review.”


Two weeks later, on May 31, 2023, in Ex parte Rudy Rodriquez, Jr., Tex. Crim. App. adopted a trial court finding that defense counsel had been ineffective by failing to timely inform the defendant that his direct appeal had been denied and the defendant’s right to file a pro se petition for discretionary review.


These two cases do not necessarily reflect a systemic problem in the Harris County criminal defense bar. Still, they underscore the need for local defense attorneys to ensure that their clients are timely notified when their direct appeals have been denied and of their statutory right to seek pro se discretionary review with Tex. Crim. App.


That is a minor obligation to fulfill.